Palin's Attorney Treads On Thin Legal Ice

Cross Posted at Legal Schnauzer

An attorney for Sarah Palin has threatened to sue any news organization that reports the Alaska governor is stepping down because of a federal investigation. But attorney Thomas Van Flein might want to watch his step. If he files a defamation lawsuit that isn't based on fact or law, he could wind up bringing a lawsuit upon himself--and Palin.

In fact, an ongoing case in Missouri shows how a poorly supported defamation lawsuit can wind up putting the plaintiff, and his or her attorney, in legal hot water.

In a letter dated July 4, Van Flein said a number of Web sites had published defamatory material about Palin, making special mention of Alaska blogger Shannyn Moore. Van Flein also threatened legal action against mainstream news outlets who might re-publish the material, mentioning The New York Times, Washington Post, Huffington Post, and MSNBC.

There is only one problem with these threats--the published material in question is not remotely defamatory. And if Van Flein and Palin file a lawsuit claiming it is, they might wind up wishing they had thought better of it.

The published reports center around allegations that Palin resigned because of a possible criminal investigation surrounding construction of the Wasilla Sports Complex. As Van Flein's letter makes clear, the story originated with an October 2008 report in the Village Voice.

Van Flein should know that other journalists have the legal right to cite and build on the Voice's reporting. Interestingly, Van Flein's letter gives no indication that he intends to sue the Village Voice.

In fact, Van Flein's letter shows that he has a poor grasp of defamation law--or he is simply blowing smoke, at the Palins' behest.

New York Times v. Sullivan is the governing law in a defamation case involving a public figure/public official, such as Palin. And it sets an extremely difficult standard for plaintiffs to meet. Under Sullivan, material must be published with "actual malice" (actual knowledge of falsity or reckless disregard for the truth) in order to be defamatory.

When journalists such as Moore build on a story that originated in the Village Voice, they are not coming close to the "actual malice" standard required by Sullivan. And Van Flein surely knows that.

So what if he wound up filing a defamation lawsuit on Palin's behalf against a journalist or news organization for reporting about the Wasilla Sports Complex allegations? He and Palin might live to regret it.

That's because of a tort called malicious prosecution. And a Missouri case styled, Donald R. Ehrhardt v. Ronald J. Herschend, indicates malicious prosecution can be an effective remedy for those hit with baseless defamation lawsuits. Paul Benton Weeks, who has become a key figure in the Don Siegelman case, represents Ehrhardt.

Ehrhardt and Herschend were candidates for separate offices in Taney County, Missouri, in 2004. During the course of the campaign, Ehrhardt caused a political advertisement to be published in a local newspaper, stating that Herschend had admitted to breaking into a locked county facility during a public meeting. A second political advertisement retracted three assertions that had been made in the first piece.

Herschend filed a defamation lawsuit, claiming that Ehrhardt had been told by the county attorney, prior to publication, that the first political advertisement was inaccurate.

Ehrhardt, however, said he had never shown the ad to the county attorney and wound up prevailing on summary judgment in the defamation case.

Ehrhardt then filed a malicious prosecution lawsuit, stating that Herschend never had probable cause to bring the defamation claim. A trial court dismissed the malicious prosecution case on summary judgment, but an appellate court reversed, ruling that the case can move forward.

We have written extensively here at Legal Schnauzer about malicious prosecution because it has played a major role in my legal headaches. Malicious prosecution is considered a "disfavored tort," and here is what Alabama law says about it: